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Employment Sample Advice

Facts

John Smyth has worked for his employer, ABC Limited for 18 months. John has requested that he be allowed take a two week holiday in June. His employer, ABC Limited informed John that he was not allowed to take holidays at this time of year and if he did he would definately not be paid while he was absent from work.

John informed his employer that he was taking the holidays as arranged. After returning to work John realised that his monthly wage salary was approximately half of what he usually gets.

Relevant Law

The Organisation of Working Time Act, 1997 sets out the statutory rights for employees in respect of holidays.

The 1997 Act applies to any person of any age working under a contract of employment. There is no qualifying period for holidays and all employees, regardless of their status or service, qualify for paid holidays. All time worked qualifies for paid holiday time.

Statutory Entitlement

Section 19 of the 1997 Act provides that an employee shall be entitled to paid annual leave equal to:

(a) Four working weeks in a leave year in which he or she works at least 1,365 hours
(b)One third of a working week for each month in the leave year in which he she works at least 117 hours,
(c)Eight percent of the hours he or she works in a leave year (subject to a maximum of four working weeks)

Therefore John is entitled to 4 working weeks holidays in the leave year.

John is entitled to be paid in respect of the period of annual leave and such payment shall:

(a) be paid in advance of taking the leave; and
(b) be at the normal weekly rate;and

Timing of Annual Leave

The times at which annual leave may be taken by an employee are unclear. Section 20(1) of the 1997 Act vests the discretion with the employer as to when the annual leave will be taken having regard to work requirements and subject to the employer taking into account the need for the employee to reconcile work and family responsibilities and the opportunities for rest and recreation available to the employee. The employer must consult with the employee at least one month before the holidays are due to commence.

Remedy

Any breach under the 1997 Act may be taken to a Rights Commissioner within 6 months of the breach. The rights commissioner can order compliance with the act and compensation of up to two years remuneration.

Unfair Dismissal

(a) substantial grounds must exist to justify the termination of a contract of employment and;

(b) fair procedures must be followed in effecting the termination

Caulfield v Verbatim Ltd UD 398/93

The EAT took the view that if an employer acts in a manner that is procedurally unfair the dismissal itself will be held to be unfair.

Gearon v Dunnes Stores Ltd DU 367/88

The EAT held that fair procedures had not been followed and concluded that the claimant had a right to defend herself and have her arguments and submissions listened to. It was not open to the tribunal to forgive this breach.

Any claim under this Act can be taken to the Equality Tribunal while the claimant is still in employment. If you feel that you are being discriminated against then we are in a position to offer you assistance. The main remedies available in the Equality Tribunal are as follows;

o Arrears of remuneration of up to three years before the date of referral
o Compensation in respect of discrimination or victimization occurring during six years prior to referral, up to two years remuneration if employed otherwise up to 12,697euro
o Order for equal treatment and equal pay

If you would like any more information please do not hesitate to avail of our advice on line service by clicking on the icon below.

Constructive Dismissal

Where an employee terminates his or her employment because of an employer's conduct towards the employee, and that conduct is deemed sufficiently serious, the employee may be entitled to a claim for constructive dismissal.

Byrne v RHM Foods (ireland) Ltd UD 69/79

In this case the claimant noticed a considerable deterioration in her working conditions and particularly her relationship with the managing director. She was given no work to do and was effectively isolated. Her telephone was cut off and her filing cabinets were removed. As a result of the stress she suffered, the claimant had to receive medical treatment and subsequently claimed constructive dismissal.

The EAT, in deciding in favour of the claimant, held that it was reasonable and understandable that her confidence and trust in her employer should be undermined to the extent that she should tolerate it no longer.